TARPON SPRINGS — When Ashley and Elijah Durham decided to fight City Hall after Tarpon Springs adopted an ordinance in September limiting the operation of mobile food trucks to certain sections of the city, Elijah Durham said he planned to “keep hacking away at this tree with my little axe and hope it falls down someday.”

On May 18, on the steps of the Old Pinellas County Courthouse in downtown Clearwater, the Durhams, owners of the SOL Burger food truck, took a mighty hack at that ordinance. Attorneys for the Institute of Justice announced they had filed a lawsuit against the city on behalf of the couple over the constitutionality of the law. The institute is a national nonprofit that focuses on four key areas of constitutional law, including economic liberty.

According to the Institute of Justice’s Justin Pearson, the legislation is a “protectionist ordinance that violates the Florida Constitution in that it denies Ashley and Elijah’s right to operate their truck for no other reason than to protect other businesses from competition,” adding the ordinance “treats (SOL Burger) differently than restaurant owned food trucks for only protectionist reasons.”

According to the ordinance, which was passed by the City Commission on a 3-2 vote on Sept. 22, food trucks may operate in certain areas of the city, including sections of U.S. Highway 19 and industrial zones. The ordinance does, however, allow food trucks to operate as an accessory to existing food and drink establishments, which violates other food truck vendors’ constitutional rights, according to attorney Adam Griffin.

“The government isn’t allowed to pick winners and losers in the marketplace. That choice is up to consumers,” Griffin said. “Tarpon Springs has said that only the politically connected insiders can have food trucks in downtown Tarpon Springs. That’s not just wrong. It’s unconstitutional. Elijah and Ashley are suing not just for themselves but to protect everyone’s rights.”

After the Durhams appeared before the City Commission in February asking it revisit the ordinance and allow them to operate on private property when invited, Mayor Chris Alahouzos acknowledged he’d spoken with several brick-and-mortar restaurant owners who were opposed to the idea.

“I received phone calls from different restaurant owners who were concerned about having those food trucks in town because it could hurt their business,” Alahouzos said in February. “So, you have to consider both sides.”

According to Pearson, the managing attorney for the IJ’s Florida office, that kind of thinking is not only outdated but unconstitutional, as well.

“Tarpon Springs embraces food trucks, but only if they are owned by local restaurants,” he said, adding, “Not only is Tarpon Springs’ protectionism unconstitutional, but it misunderstands the relationship between food trucks and restaurants. Cities in other parts of the state have seen that food trucks increase foot traffic and help downtown areas, including restaurants. But Tarpon Springs’ government failed to do its homework.”

Commissioner Costa Vatikiotis, who voted against the ordinance and has expressed his support for the Durhams, agreed.

“I believe the commission acted too hastily in adopting the ordinance,” Vatikiotis said via email. “I asked and the commission didn’t want to take more time to explore practices that have been used elsewhere for food trucks and other businesses to coexist.”

Pearson said the institute has been “extremely successful” litigating these types of cases through its National Street Vending Initiative, including successfully challenging unconstitutional food truck restrictions in places like Fort Pierce; Carolina Beach, North Carolina; and South Padre Island, Texas.

Following the news conference, Pearson said the next step in the process would be up to the city.

“Some cities like to do things the easy way and some cities like to do things the hard way,” he said. “We have had cities decide to do the right thing after we file a lawsuit. But if Tarpon Springs fights back like some cities do, they’ll have to file their response to the lawsuit … and at some point, there will be a hearing on whether to enjoin the enforcement of the food truck ban for the remainder of the litigation.”

According to the Durhams, they didn’t know this was the route their fight was going to go, but they are happy the institute decided to take on the case after they had exhausted all other avenues.

“I didn’t want it to come to this, but what’s being done to us is wrong,” Elijah Durham said. “We’ve fought so hard and tried to be nice, but if we have the opportunity to stop them from doing this to another business, we have to do it.”

Ashley Durham added, “All we want to do is make burgers and make people happy. And we want to do it in the city we live in and are raising our kids in.”

Alahouzos, who voted against the ordinance, was out of the country and could not be reached for comment.